Judge Preserves Megaupload Evidence For Now, While Gov't Tries To Pin Blame On Hosting Company

from the work-something-out dept

It appears that the judge handling the issue of what to do with Megaupload data -- a situation we've been covering for a while -- finds the entire situation just as annoying as many observers do. He's decided that the evidence should not be destroyed yet... but has also ordered all the various parties who are fighting over this to get together and see if they can broker some sort of deal. Given the various positions by all the parties, I'm not sure this is possible.

The government doesn't care about the data (and possibly wants it destroyed such that evidence against their case goes away). However, at the same time, the government has no interest in giving Megaupload back any of the millions of dollars it seized to pay for the maintenance of the data. In fact, the government seems so against this data ever seeing the light of day that it's actually making the argument that even Carpathia may be liable for copyright infringement, because it made money from Megaupload. This is a rather unique (and totally wrong) interpretation of secondary liability rules, but the DOJ seems so insistent on destroy this evidence that it's apparently not above tarring and feathering independent third parties. Of course, if it really believed that Carpathia may be guilty too, you'd think it would want to preserve the evidence, rather than destroy it.

Megaupload would gladly take on the data and pay for it if it could actually use the seized money for that purpose. The MPAA, however, is completely against this, insisting that all of society would collapse should the data go back to Megaupload (only a slight paraphrase). That said, Greg Sandoval at CNET, who handled the original report (linked above) notes that it appears the judge is not particularly convinced that there's a huge problem if Megaupload is given the data back.

"it's actually making the argument that even Carpathia may be liable for copyright infringement, because it made money from Megaupload. This is a rather unique (and totally wrong) interpretation of secondary liability rules"

Not really Mike. You need to put aside your prejudice in this case and think a minute. If the hosting company is aware of the wide infringements on the site, and is aware (at least in general terms) that their income is as a result of this activity, then they MAY have liability. It's a bit of a stretch, but not out of bounds, especially considering that I am sure that the hosting company has been fielding DMCA notices by the bucket load for this site (smart DMCA notice writers will also send a copy to the hosting company...).

There is a lot of possibilities here, including that the hosting company, aware of the storage methods used by Mega, may not have acted fully on DMCA notices. That is to say, if the link is deactivated but the file left active with other links, did they in fact fulfill the requirements of DMCA?

It's nowhere near as clear cut as you are trying to make it out to be.

A part of me is hoping that they can get the tertiary liability charge to stick, because then getting rid of the major problem companies would only be a matter of finding the degrees of separation between them and a filesharing site.

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A three way, one legged butt kicking contest is what this looks like at present.

This is the result of copyright being stretched completely out of shape till profit appears to be the sole reason to hold copyright and not the original reason to establish it.

It's also a sign of a corrupt government in the way it has handled the case to date, showing very much signs of corporate capture in which there can be no fair trial. The case has pretty much already been tried by the government and the entertainment industry in the court of public opinion and since it has spread the issues so widely in public media there is little doubt fair will ever be part of the legal machinery.

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Clearly, if you work for a company that does anything, you are in some way responsible for some crime that has occurred somewhere at some point down the line as a result of your product, and you profited from it.

Everyone needs to be held criminally responsible for everything that happens.

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Wow, did you get that wrong.

The hosting company has received a large number of DMCA complaints about the site. They would be aware of some of the infringing uses. They would be aware that the company was specifically located offshore, perhaps to avoid liablity. They would be aware that the site was generating incredible amounts of revenue.

It's not "someone somewhere might have done something", it's your customer of your service doing things, and the question becomes awareness and what actions were taken to address DMCA complaints, as an example.

Nobody suggests everyone should be liable for everyone. What a crock of an answer.

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As always, your interpretation of the DMCA has no basis in reality. There is no portion of the DMCA that says "oh, you're getting a bunch of DMCA notices, therefore you lose safe harbors because you must know something is up!"

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"You need to put aside your prejudice in this case and think a minute."

You first.

"If the hosting company is aware of the wide infringements on the site, and is aware (at least in general terms) that their income is as a result of this activity, then they MAY have liability."

Nobody ever says the phone companies are responsible for crime organised over phone lines, even though the phone companies are well aware that it happens, because we all know that would be stupid.

Nobody ever says the car manufacturers are responsible for speeding, or vehicular manslaughter, even though the car manufacturers are well aware that it happens, because we all know that would be stupid.

Nobody ever says the gun manufacturers are responsible for hunting accidents, or shooting murders, even though the gun manufacturers are well aware that it happens, because we all know that would be stupid.

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You do realise that any content hosted OUTSIDE of the USofA that receives a DMCA notice has no legal responsibility to do anything than either use it to line the bird cage, wipe their arse with it or burn it for fuel

ON the other side, your notion of vicarious liability rulings is severely lacking, otherwise AT&T etc would ALSO be liable for any content they transmit (or store in temporary memory) within the whole network.

The DoJ is clutching at straws, trying to basically scare everyone so they look somewhere else other that at the DoJ's incompetence and misfeasance in this whole saga.

Though I do love your use of phrase "the company was specifically located offshore, perhaps to avoid liability" , of course their could be no other reason to not be located in the USA.. Like maybe the USA is NOT the only country in the world? Or maybe USA is currently not a good place for any business investments whatsoever. Whodathunkit.

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"You do realise that any content hosted OUTSIDE of the USofA that receives a DMCA notice has no legal responsibility to do anything than either use it to line the bird cage, wipe their arse with it or burn it for fuel"

Oh, how incorrect.

In countries that do not have a DMCA law, there is actually no such thing as a "safe harbor" and as such, potential liability comes from the very first notice - and in fact, the notice isn't even a requirement for making a legal case.

However, since Dulles, Va.-based Carpathia Hosting (thanks torrent freak) is in fact subject to US law... well...

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Yeah you're trolling, I'll bite.

I see your logic, and I see all your "if"s and "may"s but I am a lot more skeptical than you, and for the sake of the little bit of faith I have left in the American justice system as related intellectual property I hope any ruling is a clear cut no.

An analogy (with stealing) would be charging a shipping company because people put stolen cars in FedEx freight. Should a container ship might be liable because and FedEx paid to put the container on the ship?
How many people have to ship stolen cars through a courier before the shipping company is liable for shipping stolen cars? Don't forget a ship would also have new cars, soap, electronics, board games, bags of packing peanuts, etc. on board too.
The analogy breaks down quickly with infringing vs stealing, and you can seize a single container off a ship, its impossible to seize a file in the same way. But the analogy almost holds if you consider they've held the entire ship away from docks.

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Nobody ever says the gun manufacturers are responsible for hunting accidents, or shooting murders, even though the gun manufacturers are well aware that it happens, because we all know that would be stupid.

You've obviously not spent much time around anti-gun people. That's said quite often.

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Actually I reside in one of those countries.

And a DMCA notice is not a legal notice at all, though is a great acknowledgement that whoever sent it to you is a complete idiot when it comes to your own jurisdictions legal process. iiNet v AFACT proved that

As for Capathia being US... and? They still do not have to acknowledge a DCMA legally when the content is hosted in a jurisdiction that has no legal requirements for DCMA's. Or will the USG allow C&D's for alleged defamation from other countries now even though the USG say they are wrong based on the defence of "First amendment" when that "right" is not in other countries.

Oh wait I see, what's good for the US is great until it affects the US.

You still haven't answered the vicarious liability question.
Nor why "offshore" is so wrong

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Mmm, yes, I see. So... tell me. Just what is it you think the DMCA says the hosting company must do? They aren't able to remove the content. There is no provision that says they must boot the client off their servers. So, what?

DMCA and subsequent evidence

One problem with DMCA's notice and takedown system is the lack of oversight.

How can a service provider know that all DMCA complaints are legitimate?
If person a upload a music track to his private cyberlocker, it may be legal if he has bought the track and does not redistribute
the link, but person b uploading the same ffile with the exact same MD5 hash is illegal if the uploader is in violation of copyright.

And since the service provider, according to the USDOJ's silly interpretation of copyright infringement may not retain the file after being notified, all evidence for whether the file is copyright infringement or fair use is gone.

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Please show where the notices were sent to Carpathia, and I will explain why they were ignored.

Carpathia and other hosting rented servers to Mega.
Mega was the party who dealt with the DMCA notices.

To believe what your saying one would have to use a real world example of Hertz becoming liable because you got a speeding ticket while renting their car.

Carpathia had no direct access to the Mega data or day to day operations beyond keeping the servers powered and functional.

There are only possibilities that you will make a larger ass of yourself trying to bend and twist the reality of the situation to suit your narrative that is lacking in truth and fact.

The threat to sue Carpathia is to scare them into getting rid of the evidence in the case that very well might screw them over.
A tidbit in the news you might have missed, in the HotFile case the **AA's claim with a "study" that everything popular was infringing.
An outside researcher showed that the most popular downloads were actually open source posted by the authors.
So once again you have the **AA's screaming how it all must be infringing and the Government taking action on their word alone, only to end up screwed over because the **AA's can't tell the reality from what they imagine.
The look on the lawyers for the **AA's must have been hysterical at this new threat, without the Mega data they have no civil case.

Anyone else think it was funny the DOJ lawyer threatened to sue, and then in passing mentioned there might be a civil suit being filed as well? Is the DOJ so bought they are now consulting for the **AA's cases?

Something else fun is DOJ complaining about Mega/Dotcom trying to retain good lawyers and objecting because they have represented many corporations in copyright matters.

The **AA's already scared off the first big name lawyer, and now the DOJ wants to limit how much representation the accused can have. If your going to stack the deck like that, you must have found out your case is going down the tubes fast.

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... oys *facepalm*

i prefer New Zealand's attitude towards guns, to be honest. it runs thusly: there are a few legitimate reasons to own guns. none of them are the sorts of things there is any legitimate reason to hide. guns are dangerous. therefore, all guns must be licensed, all guns not used for those purposes are forbidden. miss use on the part of those who have such lisences are the fault of the person who owns the gun and/or the person holding it at the time and/or in certain circumstances, the person who managed to get themselves shot. (depending on exactly what happened, and the last requires the person to have known what was going on and to have done something incredibly stupid.)

also: to keep the peace in occupied areas, it is far more effective to REMOVE weapons which are not under the control of your forces from the area entirely, than to try to arm 'your side'. Police can do their jobs just fine with armour and melee weapons. anything they Can't handle is why you have soldiers there.

makes much more sense than the stupidity i hear out of americans who actually care much on either side of the issue (rabid morons who think everything is the gun manufacturer's fault verse those of dubious sanity who can't see there might be good reason to keep track of who owns what, armaments wise.)

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and having enough money to dump into the black hole that is the courts and the necessary counter-bribes to not end up with all your assets frozen and your business destroyed while you're 'investigated' (and probably in solitary confinement if you're not lucky enough to be out of the country at the time...)

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again, all this nonsense should kill ANY hope of extraditing Kim Dotcom.

unfortunately, under the current government in New Zealand, that's not as guaranteed as one would like.

(techincally the courts are independant of the legislature and the executive, beyond the fact that they all officially answer to the monarch... 'bout a decade or so back, however, parliament Somehow managed to replace the privy council (technically the monarch themselves, but the privy council filed in like the GG does as head of state) as the highest court of appeal with a High Court of some sort within NZ. It's generally acknowledged that this was entirely because they LOST cases when tried before the privy council, and they would have greater influence on a court actually within the country. it's quite noticeable that Parliament (or at least the 'government' part of it) can have quite a bit of influence over the courts, one way or another, when it comes to things like this.

oddly, if you bring a case Against the government, the courts suddenly become rather immune to such influence... and the government desperately tries to disclaim responsibility and promptly writes laws meaning that their actions are legal... from then on, at least.

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Response to: Anonymous Coward on Apr 16th, 2012 @ 8:13pm

As I have said before, disabling the URL without removing the actual file is the STANDARD AND REASONABLE response for hosting companies to do in DMCA matters as the claims at that point are UNSUBSTANIATED.

Guns and self-defense

Guns are necessary for effective self-defense. The nanny state attitude of most nations is really annoying.
Self-defense is a human right, and without effective means of its exercise this right becomes meaningless.

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So what you're saying is they should have spied on every single file to be 100% sure? You know who's responsible for the copyright infringement? THE PEOPLE UPLOADING IT!

I can assure you the internet has masses of data that's not infringing at all! Of course files will be copied as long as there is a internet. It does not mean the world should turn into a communist dictatorship. Even if it did people will still find ways to share files. They did the same exact thing with the VRC and failed thank god.

I mean is it alright for my landlord to come over to my house and search every single thing that I own? Not only would I bust his fucking head in I would sue. I'm a very calm person but the idea of raping my privacy enrages me.

You want to tell me off? That's fine with me since it's your right to speak your mind. I would just laugh and reply with something worse. However I draw the line at going through my shit. I don't care if it's mostly pointless junk I really don't need. No one has any rights to search it but me unless stated otherwise.

While the servers are leased they do not own them during the time. If they want to end it when the contract is up that's their prerogative. Till that time is up the contract holders of the lease are responsible for removing copyrighted works. Mega gave them tools to do just that and it's not even required to go that far. They could've just had a td dept that handled every DCMA themselves. It would have been a much slower process.

I'm also sure in the contract there was termination agreements for copyright infringement based on that a site did not fight it at all. That was not the case so Carpathia is and should always remain in the clear they did nothing wrong.

Re: Guns and self-defense

I don't know about you, AC 40, but I think a good-sized baseball bat can be plenty effective for self-defense. A wooden one, not one of those aluminum flyweights. I don't think you'd want to be hit in the face with it, would you? Best part is, it's perfectly safe to just leave around the house, unlike a gun where you have to take so many precautions. The chance of accidental death by bat is virtually nil.

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>Every single major cyberlocker has changed the way they operate because of the megaupload bust.

If you run the risk of having your business run into the ground regardless of whether liability applies to you or your ability to prove yourself innocent I can't imagine anyone would sit on their thumbs. However, this has nothing to do with whether Megaupload is innocent or not. It's like seeing someone in a car accident and resolving never to get in a car again since you might get into an accident.

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So what you're saying is they should have spied on every single file to be 100% sure? You know who's responsible for the copyright infringement? THE PEOPLE UPLOADING IT!

Unless I'm missing the relationship between Carpathia and Megaupload (i.e. hosting company providing infrastructure and company creating and running a service on that infrastructure) I'd be very suprised if it was not breaking several illegal computer use laws for Carpathia as the hosting company to even look at the data much less change it. I certainly wouldn't deal with a hosting company that wanted (or indeed was capable of without hacking) access to my confidential business data.

Right...

"I don't know about you, AC 40, but I think a good-sized baseball bat can be plenty effective for self-defense. A wooden one, not one of those aluminum flyweights. I don't think you'd want to be hit in the face with it, would you?"

Yeah, because a bat is SO effective against someone coming at you with a gun. I mean, you are SO much better equipped to charge in and swing away with a bat, rather than shoot a gun and wound/maim/kill/run off the person trying to shoot you.

I'd rather take a bat to the face than a bullet. Then again, I wouldnt end up taking a bat to the face because I would just shoot the idiot who tried to run at me with a bat.

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Which puts it under UK jurisdiction. Mega should not have to abide by the laws of any country except where its HQ is based. Which is not the US.

I'd bet you Canadians to Americans that if India's Justice Department went and seized Microsoft's sites and tried to have Steve Ballmer extradited because Windows facilitates criminal copyright infringement, that the US would be laughing in India's face.

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"If the hosting company is aware of the wide infringements on the
site, and is aware (at least in general terms) that their income is as a result of this activity, then they MAY have liability."

This is not correct, see the decision in the MP3tunes case.
Both the MP3tunes and the Viacom v. Youtube cases hold that the knowledge standard requires knowing specific instances of infringement and not general knowledge. The specific infringement prong also applies to the red flag knowledge often touted as a magic silver bullet.

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Once again your interpretation of the DMCA is incorrect. Not qualifying for the safe-harbor doesn't create potential liability out of thin air. You still have to have actually done something to be held liable for and not meeting the requirements of the DMCA is neither a tort nor a crime.

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Yes, you are correct - but as these countries have no notification requirements you can go directly to legal action, with no "oops" as permitted under DMCA. A DMCA style notice served to a party outside of the US is a politesse, not a requirement - however, it does help to support your claim when you ALSO send the DMCA to the hosting company and others who can influence the availability of the content in question.

DMCA is US only - but it certainly helps to show good fatih in other places, giving sites extra time and a heads up before you move forward with legal action.

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I don't think you realize the slippery slope you are headed down here.

What you are suggesting is that the internet should be governed by whatever country has the slackest laws on the issue. If you have a single country that does not support copyright in any form, should that be the home for all of the pirate sites and "file locker" type companies, who could then say "it's legal here..." - while offering service in all of these different countries?

Should we do the same for all the other laws? Should we follow the taliban when it comes to dealing with women (stay covered, don't get an education, stay home and be a baby machine)? Should we follow Nigeria when it comes to fraud laws, and so on?

What you are suggesting on the surface sounds nice, but taken to it's logical end, it's not a good thing.

Further, let's be clear here. If you do business or offer a service in a country, you should be subject to it's laws. Mega may have been based in Hong Kong, but they offered services all over the world. They should be subject to the laws of the countries they operate in.

As for your Microsoft example, it's a nice try but you fail. The domain isn't hosted in India, it isn't owned in India, and so on. The indian courts could move to seize other Microsoft assets in India, but they would have a hard time getting out of the starting gate on the rest. India's surface case for criminal copyright infringement would not rise up to the level needed for most extradition treaties.

Further, anyone getting charged with anything to do with copyright in India should laugh - the government sanctions bypassing copyright at every turn. There is nothing here - except the worst case system, which I am glad the internet is not going to operate based on Indian law.

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And what you are suggesting is that the internet should be governed by whatever country has the strictest laws on the issue. If you have a single country that does not support fair use in any form, should that be the home for all of the copyright litigation type companies, who could then say "it's illegal here..." - despite it being legal in all of these different countries?

Should we do the same for all the other laws? Should we follow the taliban when it comes to dealing with women (stay covered, don't get an education, stay home and be a baby machine)? Should we follow China when it comes to privacy laws, and so on?

What you are suggesting on the surface sounds nice, but taken to it's logical end, it's not a good thing.

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"What you are suggesting is that the internet should be governed by whatever country has the slackest laws on the issue. If you have a single country that does not support copyright in any form, should that be the home for all of the pirate sites and "file locker" type companies, who could then say "it's legal here..." - while offering service in all of these different countries?"

Yes, this should absolutely be the case. Countries should compete for internet based businesses operating within their borders by writing laws that foster innovation, not curtail it. This is no different from states having varying laws regarding credit cards which is why many of the operate in Delaware.

"Should we do the same for all the other laws? Should we follow the taliban when it comes to dealing with women (stay covered, don't get an education, stay home and be a baby machine)? Should we follow Nigeria when it comes to fraud laws, and so on?"

We already do the same with other laws. Jurisdiction exists, deal with it. Taken to it's logical end we have a system were a nation's laws apply only within it's own borders as it should be.

What you suggest, on the other hand, that "They should be subject to the laws of the countries they operate in." doesn't make any sense at all. Ironically that is the scenario where stuff like 'we follow the laws of the taliban' even though we're not ruled by them would actually come up.

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You can go directly to legal action but you'd loose and there's not enough money to even pursue only the cases where you'd win. You see that was what the DMCA was for, it wasn't about protecting anyone with a safe harbor it was about shifting the costs from the party who should be responsible for it to a third party service provider.

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Suing a company for offering a service to a company that offers a service to people that use it to infringe is tertiary liability. I was pointing out how the concept the DoJ is proposing could be exploited. I'm not sure how you interpreted my post.

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"And what you are suggesting is that the internet should be governed by whatever country has the strictest laws on the issue. If you have a single country that does not support fair use in any form, should that be the home for all of the copyright litigation type companies, who could then say "it's illegal here..." - despite it being legal in all of these different countries?"

No, what I am saying is that the law of the internet should be the law of the country that the service is provided in.

If you provide service to Americans, you are subject to American law with them.

if you provide service to Europeans, you are subject to their laws.

if you provide service to the Taliban, you are subject to their laws... and so on.

What was proposed is to allow companies to work SOLELY on the laws of the country they are based in (and not where they provide service, or even where they provide service from), which creates the specter of a sovereign country having it's own citizens ignoring the laws, because the website owner is "offshore".

The result would be the internet running the world at the lowest common denominator level of law. Someone sets up Sealand and suddenly the whole world would be subject their laws? Seems unfair and unreasonable, and certainly an affront to the democratic processes of the rest of the world.

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"To believe what your saying one would have to use a real world example of Hertz becoming liable because you got a speeding ticket while renting their car."

Nice analogy, but no.

You have to understand that DMCA law sets up a completely different system of liability when it comes to service providers - ALL service providers.

Let's play the Techdirt game, shall we? What is the difference between Carpathia and Megaupload? What is the difference between Carpathia and YouTube? Answer, for the purposes of DMCA, there are NO differences. Carpathia offers hosting to a number of people. Mega offers hosting to a number of people. Carpathia offers hosting, Youtube offers "hosting". If you want to play the Techdirt game and call them all hosts, that's fine - but it means they are all hosts.

If a host (Youtube) is subject to DMCA, then a host (Carpathia) is subject to DMCA. Ask anyone in the US hosting business, and they will tell you - if they do no act, they risk liability.

"The threat to sue Carpathia is to scare them into getting rid of the evidence in the case that very well might screw them over. "

No, the threat to the company is real, and has nothing to do with trying to get them to destroy "evidence" (it's not evidence, it's people's personal data... ). Rather, if the hosting company wants to claim innocence, they will have to maintain the data AT THEIR OWN COST until such time as they go through court. The hosting company deleting data would mean they might be judged only of the evidence remaining, as collected - and they would likely not look very good.

"An outside researcher showed that the most popular downloads were actually open source posted by the authors."

Actually, you have to pay close attention to understand what they did there. The researchers only mentioned the top 2 files, and suddenly STOPPED. They didn't want to mention #3 to #10. Further, the item they pointed to Ireb, is actually a bit of a hack tool, to bypass certain restrictions on Itunes. It's not exactly a clean example, don't you think? Why not ask them what files #3 through #10 were? They aren't telling - which is in itself very telling!

Your logic is not the same as our Earth logic

The result would be the internet running the world at the lowest common denominator level of law.

Because the lowest common denominator is always something to aim for, right?

Your ideas are completely untenable and shows an absolute lack of comprehension of the reality of a worldwide internet. You should really step back and think of a few flaws in your own argument before you hit submit. You might just rethink a few things. Like:

How many lawyers versed in how many different countries laws will your company have to have on retainer to figure out what laws you are breaking?

How many of those countries are you offering a service which is legal until someone else (completely separate from you and without your knowledge) does something illegal with it? How do you control the actions of millions of users? (Keep in mind that BILLIONs of dollars have been unsuccessfully thrown at the question.)

Why is it so unreasonable for someone to just be responsible for obeying the laws of the country they are in, but it's reasonable for someone to be responsible for obeying all laws everywhere?

Why are internet storage lockers more liable than their physical world equivalents?

I really think you should ask yourself some of those questions. If you already have, just acknowledge that you want to kill the world wide internet and replace it with smaller intranets that don't inter-operate with incompatible jurisdictions.

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Sure. But long term the assertion that people can not run online services that allow users to share files is unlikely to hold. I don't think file lockers are dead, they are just covering their ass until MU gets sorted out.

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No, what I am saying is that the law of the internet should be the law of the country that the service is provided in.

And how would this be determined? By the nature of the internet, my various internet services provide service to anyone anywhere in the world, therefore I should have to adhere to the strictest laws that exist anywhere on the planet?

Wouldn't it be better to apply the liability to the people using the service rather than the people providing it? A service provide adheres to the laws where they are, everyone else (the users) adhere to the laws where they are.

Anything else means that the internet would have to be balkanized, where every service provider must limit access to their services by geography. That way madness lies, as well as a severe curtailment of the very thing that is the benefit the internet provides: open communication.

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If you provide service to Americans, you are subject to American law with them.

I think it needs more specific qualification

If you provide INTENTIONAL AND SPECIFIC goods and/or services to a JURISDICTION, you are subject to that jurisdictions laws for criminal and treaty purposes, though only if reciprocity exists.

Notice the Intent (mens rae) and specificity elements? This wipes out those who might sell or provide something unknowingly.

Notice the criminal and treaty elements. This means that no civil laws that are totally different around the world and are more cultural, political, and ideological motivated than anything else (and capitalism is an ideology same as religion) can be used to detain, harass, extradite or extort.

Notice the reciprocity element. This means that this will only work if BOTH states (all countries) agree to equal treatment. Which basically negates anything to do with the USA since extradition is not allowed for US citizens.

The US is the Main problem with any International laws since it wants one thing for the world but refuses to allow the world the same thing towards its own citizens. Until that time this above is all a pipe dream.

Put Rackspace in the iron maiden...

You haven't the slightest clue what the implications of what you are advocating are.

THIS is why ALL proposals from the copyright-maximalists need to be fought tooth and nail. They aren't the adults in the room. They are spoiled young children that either have no clue what they are asking or simply don't care.

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It is NOT a legal notice and has as much weight as a note written in crayon sent via carrier pigeon. It doesn't qualify as a notice if you require the court to consider damages, it doesn't qualify as a note to state you are a nuaghty person/company and I know what you are after.

As I stated before the DMCA is basically showing the other party that your legal knowledge is basically lacking with any other jurisdiction than the USofA. Not a good strategy and just allows the party who knows about their own jurisdiction to get a court order stopping you from EVER contacting them again, or using the DMCA note as evidence that can be called in a civil (or criminal in some jurisdictions) harassment hearing Against the DMCA sender.

I love getting and reading C&D's from the USA.. They make my day, and I know most ISP's in my own country who have boxes full of American DMCA's that they don't even bother to open any more, though are good for a cold winters night. Good kindling!

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The hosting company has received a large number of DMCA complaints about the site. They would be aware of some of the infringing uses.

Have you any direct evidence that Carpathia directly received so much as a single DCMA complaint or takedown notice? Keeping in mind that DCMA complaints would be and are common for lockers like Megaupload, even if every single file on the site was legit.

I get at least one a month claiming I violated someone's copyright on a photo I took myself and posted on my church's web site. My server company hasn't heard a peep. (The one that comes in regular as clockwork is always from the same lawyer in the U.S. claiming the photo was taken by his client somewhere in Florida. As both are outdoors shots it's incredibly easy to see by the plant life in his client's photo and in mine are completely different. Not surprising as his client took his picture in Florida and mine on Vancouver Island just north of the part of the States called the Pacific Northwest. We're now on a first name basis and he's quite apologetic but his client insists. His client's photo is much better than mine in terms of light and composition, by the way.)

The point is that a complaint, in and of itself, is not evidence that anything wrong is happening. Nor is a take down notice. Some copyright holders do file on anything even remotely similar or, as in my case, something that while similar simply isn't the same and wasn't taken in the same place or time of year.

There's that to take into account as well as the fact that unless Megaupload was violating their terms of service with Carpathia the host wouldn't be the least bit interested and, at best, would just pass it on. Or simply filter forward such complaints directly to Megaupload.

All that said, do you have a shred of evidence that Carpathia had the slightest knowledge of unproven allegations of widespread infringement by Megaupload? "They must have known..." isn't evidence, it's opinion.

Re: Re: Re:

Let's play the game by your rules for a moment.

Incidentally, that you had to put quotes around YouTube as a "host", does indicate the real different between a hosting company and the web site, and it's owners, as "hosts". Carpathia hosts more than one web site and one of the standard clauses in the contract for hosting is that the owners of the site are the ones responsible for the content on that site, not the host, unless that content breaks the terms of service.

The host is a transit and storage entity nothing else. Mega rented storage space, leased an IP address and built that site at that address. That Carpathia would have known the business Mega was in simply by the name alone that doesn't mean or give them the right, to monitor every upload and download or every word on forums, etc on the site. If that's your ideal world then hosting would be prohibitively expensive and response times incredibly slow. And setting up an online file locker alone is not illegal nor is being offshore.

In the end it was Mega's job, legally and morally, to respond to takedown notices which, at least to now, they have said they did. It's not Carpthia's job or responsibility. It's Mega that was providing access to the databases they built to hold the files. Carpathia did no such thing. In fact, attempting to access the database directly would have returned, at best, a 404 response. It's like a physical storage locker. I have the key, I allow access the owner of the storage locker doesn't nor do they have the right to break into it without a court ruling to do so even for rent arrears. (At least where I live.)

So responding to take down notices was always Mega's job and responsibility even if the host is copied on the complaint. For the host to respond they would have to crack the password(s) Mega put on their database(s) and remove the file themselves and place it in another database until such time as the dispute is settled. But for the host to crack the password(s) and move the file(s) is of dubious legality UNLESS that's written into a contract or part of the terms of service in the event of a DCMA takedown notice.

Simply put, legally and morally, Carpathia has no right or obligation to get involved in a dispute between a copyright holder and Mega over an alleged incident of infringement. They do not provide access to the file(s) in question, Mega does. They rent storage.

Re: Your logic is not the same as our Earth logic

"How many lawyers versed in how many different countries laws will your company have to have on retainer to figure out what laws you are breaking?"

Umm, that is the current situation for any company that wishes to enter a new market. If McDonalds wants to open in a given country, they have to be aware of the local food service laws, employment requirements, and sales material laws, as examples. They cannot come in and set up show where ever the want (in violation of zoning laws) or put up large signs (in violation of local ordinance) or bring in a bunch of people from outside the country to work there (against local immigration laws).

The real world says "you must be aware of the law".

"just acknowledge that you want to kill the world wide internet and replace it with smaller intranets that don't inter-operate with incompatible jurisdictions."

Not at all. The real issue isn't subtle differences that ban be ironed out (see European privacy laws as a big but subtle issue), and rather to look at specifically illegal activities that are permitted or tolerated in only a small place.

Let's go extreme: If there is a country that legally accepts child porn, should you be allowed to sell child porn videos from there into the US? I am sure your answer is no. Selling heroin is technically legal in some places. So should they be able to set up a mail order company there to sell to US addicts, and have it be legal? Again, your answer should be no.

Why are internet storage lockers more liable than their physical world equivalents?

They are not more liable - they are operating on a completely different model. I have a storage locked, and I pay for it each month. I don't get paid by the storage company every time someone pays for the combination to my locker. Trust me, if a storage company was doing this sort of thing (renting lockers to allow you to sell pirated goods out of, collecting an admission fee, and sharing it with the locker operators) they would be closed down pretty quickly.

What is really required to make this work out is a framework that many countries can join and approve, that would set parameters for the ways business would operate between countries, and allow a free flow of information, data, and yes, business.

Until that happens, you will have constant friction between the laws of different nations.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

"We already do the same with other laws. Jurisdiction exists, deal with it. Taken to it's logical end we have a system were a nation's laws apply only within it's own borders as it should be."

Exactly - when you do business within the borders of a country, you are subject to it's laws. Do you think that Mega had customers in the US, who signed up from the US, used US based payment systems, etc?

Re: Right...

You forget... If you don't have a gun, because of a "nanny state", then the likely hood of the other person having a gun is also very low.

TDR is confident that anyone who comes at him won't have a gun.

About a month or so ago after dark, a neighbor a couple blocks over saw a man dressed all in dark clothing sneaking thru his backyard. He grabbed his gun and went out to confront and scare away the sneak-theif.

He was then promptly shot by the SWAT team who were startled by his appearance. (The SWAT team was trying to arrest some gang member they mistakenly thought was in the next house over.)

It used to be, when I heard the term "SWAT team" I thought of guys dressed all in black with a big white "SWAT" across their chest. But no, apparently they don't wear that here in Oregon. They were wearing camouflage and looked like a military force.

Re: Response to: Anonymous Coward on Apr 16th, 2012 @ 8:13pm

Disabling the URL for the entire site is an over reaction as long as the claim is still unsubstantiated.

To the file, is another matter, should the host know about the the allegation may still be an over reaction unless it violates contractual terms or the terms of service by, let's say, Mega. The only problem there is that with scripting languages such as PHP the actual URL of the file itself is hidden or changes.

The host does have the moral obligation to tell Mega, let's say, to settle this and do it NOW by disabling the link they have to it and give them a reasonable amount of time to do so. After that they may have the right to break into Mega's database(s) to disable it themselves. The end result, ideally, is the same. As Mega claims that it did exactly that themselves for now the question is academic. Though your statement is reasonable and valid in many ways it's a whole lot easier if it's written into the contract the host has with their customer and have the legal right to use a master password to access their customer's database.

Re: Re: Put Rackspace in the iron maiden...

You can confirm you have actually read that very same law you're requesting he read, right? Because I'm having quite a bit of trouble looking through said law where it states countries outside of the US are liable, in anyway shape or form, for DMCA takedowns, let alone third-party companies like Carpathia.

You might have had a case if you'd actually read that very same law you keep telling others to go and read; in fact, I do not think you yourself have actually read that law at all.

Re: Re: Re:

You have failed to provide any proof that any misguided IP holder EVER sent a single DMCA notice to Carpathia.

While your trying to twist and pull to make them somehow fit, there is a problem when you compare them to the other services. Carpathia is not offering any service to the "public". You did not go onto a page for Carpathia's services to access Mega or anyone else they host. YouTube is the entire platform, otherwise the notices would go directly to Google or the server farms they rent space in around the globe.

You want to keep trying to create the illusion they knew because they got a stack of DMCA notices, and you can't. You can not, have not, will not provide any evidence other than what you IMAGINE went on.

25 PB of data and the Government took under around 47 GB to use as the only evidence in the case. I'm not a math type but that seems to be a tiny sampling used to prop up a shaky case.

Mega wants to buy the servers to maintain them for the trial against them, the DOJ has screamed no they can't have them... think of the children!! They offered no proof of their CP allegations, and outright said to wipe them rather than I dunno try to prosecute the people who made and uploaded it. Copyright put ahead of raped children.
Go tell your boss that is the new headline coming out.
You think the public dislike for the **AA's will go down after people understand that this entire case was just to appease the biggest donors? That children who were in need of help, according to the DOJ ITSELF, were not important enough to even TRY to investigate. Instead the DOJ said delete the files and remove any hope of them saving these children they claim are at risk.

I enjoy you trying to debunk the study by saying other files were infringing or might have been... but the main point is the study paid for by the **AA's once again was FLAWED. They claimed the top downloaded files were their content, they do not hold the #1 or #2 slot. We haven't seen 3-10 because its a confidential report and only a portion was leaked.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

"Wouldn't it be better to apply the liability to the people using the service rather than the people providing it? A service provide adheres to the laws where they are, everyone else (the users) adhere to the laws where they are."

Generally, no. Clearly, there are plenty of free sites online that don't violate the laws of most countries (never say never, right?). Creating a super limited, our country only internet (I'm looking at you Iran) entirely defeats the purpose.

The real likely solution is sort of a combination of the two - a blacklist within a country that nulls out traffic to a certain destination (do not carry), as a stronger enforcement via treaty of the laws of sovereign countries, when it comes to doing buiness or publishing in them.

Re: Re: Re: Put Rackspace in the iron maiden...

"Because I'm having quite a bit of trouble looking through said law where it states countries outside of the US are liable, in anyway shape or form, for DMCA takedowns, let alone third-party companies like Carpathia."

Re: DMCA and subsequent evidence

Because the DMCA notice will have a corporations name on it. This ensures it is 100% legal and correct.
Mere mortals can not own IP so they can never file one.

(falls over laughing)

It isn't a problem in oversight actually, it is a problem with the law. There is no actual penalty for filing a completely bogus DMCA notice. The system is weighted to believe the corporation over people. (see the recent case of the bird song declared infringing.)

The same MD5 hash is not as likely as one would expect, but it is a possibility. Many of these take-downs are filed merely on the name or portion of the name. There was a college professor with the name of Usher who had uploaded course material for his students to have access to... guess who got a take-down notice from the team keeping people from possibly sharing an Usher song online? They claimed it was infringing material and they had verified it under penalty of perjury that it was their material.

The DMCA is flawed in that the service provider just has to disable access while a user has to navigate a complicated system to file a counternotice if it was a bogus notice. Then the originator says nope not true we own it. And then your file is gone. No one else gets to step in and stop it. You might be able to file a lawsuit for copyfraud, but that requires more time and money than normal people have. The corporations will just use their lawfirms to keep it out of a courtroom until you run out of anger and or money.

Mega responded as required to DMCA notices, but not doing the extra things the **AA's want them to do but are not part of the law. There is no law that requires service providers to check each and every file for possible infringement, but they got Google to create Content ID. They got HotFile to give them special access to delete their copyrighted material (if you ignore them taking down other companies works, and programs they just didn't like, or filenames that had a word they assumed meant it was infringing.)

See Chargone's comment above New Zealand's gun laws. NZ's gun homicide rate is about 30% of Switzerland's, about 10% of The Czech Republic's, and about 4% of the US's (Wiki). The Germans do seem to be very well-behaved with guns though.

Yay!

One of my favorite comic artists kept his work backed up on MegaUpload... he's working on backing them up elsewhere, but it's nice that their still the stuff from Mega still their just in case... for now anyway.

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

No, the point is that we don't know what "doing business in a nation" means on the internet, unless we only count the location of the company and/or servers.

To say that if I open a commercial internet site then I have to be bound by the laws of all the nations whose citizens may come to me is crazy. It's like saying that if I open a grocery store, I have to abide by the laws of the nations that foreign citizens call home just because they walk into my store.

The only rational way to deal with jurisdiction is to apply it to the right parties: the people, customers or providers, are held to the laws of the countries they are in.